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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules 5. Regulatory Alternatives The Department considered two alternatives to the proposal of using the FLS-based field and livestock worker combined average gross hourly wage, where USDA reports such as wage, as the sole source for establishing the AEWR in job opportunities classified under one of the following SOCs:
452041Graders and Sorters, Agricultural Products 452091Agricultural Equipment Operators 452092Farmworkers and Laborers, Crop, Nursery and Greenhouse 452093Farmworkers, Farm, Ranch, and Aquacultural Animals 537064Packers and Packagers, Hand 452099Agricultural Workers, All Other For each alternative, job opportunities classified under any other SOC will have the AEWR set using the same methodology in the proposed rule: The AEWR for each occupation would be the statewide annual average hourly gross wage for that occupation as reported by the OEWS survey. If the statewide wage is not available, the AEWR would be set by the national annual average hourly wage for that occupation as reported by the OEWS survey.
Under the first regulatory alternative, the Department considered setting the AEWR for job opportunities classified under SOCs 452041, 452091, 45
2092, 452093, 537064, and 452099,
using the highest of the annual average hourly gross wage reported by the FLS
or the weighted average hourly gross wage provided by the OEWS for these same occupations for the State or region.
If a statewide annual average hourly gross wage in the State is not reported in the FLS or the OEWS survey, the AEWR for the occupation shall be determined using the national annual average hourly gross wage as reported by the FLS or the OEWS survey.
The total impact of the first regulatory alternative was calculated using the methodology described to calculate proposed wage impacts using FY 2020
to FY 2021 certification data. The Department estimated average annual undiscounted transfers of $103.30
million. The total transfer over the 10year period was estimated at $1.03
billion undiscounted, or $890.12
million and $741.88 million at discount rates of 3 and 7 percent, respectively.
The annualized transfer over the 10-year period was $104.35 million and $105.63
million at discount rates of 3 and 7
percent, respectively.
Under the second regulatory alternative, the Department would set the AEWR using only the OEWS average hourly wage for the SOC and State i.e., use of FLS-based wages in establishing AEWRs under the H2A program would be discontinued. When OEWS State data is not available, the Department would set the AEWR at the OEWS
national average hourly wage for the SOC under this alternative. This
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alternative reflects the transfers that would occur if, for example, the USDA
survey was discontinued or suspended and, as a result, the Department would set the AEWRs for each State using the OEWS data. For SOC codes 452041, 452091, 452092, 452093, 537064, 452099, the weighted average hourly wage provided by BLS at the State and national level is applied. The Department again used the same method to calculate the total impact of the regulatory alternative and found that unlike the proposed rule and first regulatory alternative, the second regulatory alternative would result in transfers from H2A employees to employers. The Department estimated average annual undiscounted transfers of $72.30 million. The total transfer over the 10-year period was estimated at $723.03 million undiscounted, or $623.03 million and $519.28 million at discount rates of 3 and 7 percent, respectively. The annualized transfer over the 10-year period was $73.04
million and $73.93 million at discount rates of 3 and 7 percent, respectively.
Exhibit 9 summarizes the estimated transfers associated with the three considered revised wage structures over the 10-year analysis period. Transfers under the proposal and the first regulatory alternative are transfers from H2A employers to H2A employees and transfers under the second alternative are transfers from H2A
employees to H2A employers.

EXHIBIT 9ESTIMATED MONETIZED TRANSFERS AND COSTS OF THE PROPOSED RULE
2020 $millions Proposed rule transfers from employers to employees
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Total 10-Year Transfer
Total with 3% Discount
Total with 7% Discount
Annualized Undiscounted Transfer
Annualized Transfer with 3% Discount
Annualized Transfer with 7% Discount

The Department prefers the chosen approach of the proposed rule because it allows specific OEWS wages for workers in higher paid agricultural occupations, such as supervisors of farmworkers and construction laborers on farms while maintaining the use of FLS data for occupations with the majority of H2A workers. As the Department has stated previously, the FLS, which surveys directly hired agricultural workers, is the best source of wage data to set AEWRs for the vast
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$295
254
212
30
30
30

majority of H2A occupations. This is in part because the FLS is a more comprehensive source of farmworker wage date than the OEWS survey. The chosen approach also minimizes transfers compared to the two alternatives, and ensures greater stability in the wage obligations of employers by determining AEWRs, including annual adjustments, using the data source that best reflects the wages of workers in the United States similarly employed.

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Regulatory alternative 1
transfers from employers to employees $1,033
890
742
103
104
106

Regulatory alternative 2
transfers from employees to employers $723
623
519
72
73
74

B. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act and Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking The Regulatory Flexibility Act of 1980
RFA, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104121 March 29, 1996, hereafter jointly referred to as the RFA, initial regulatory flexibility analysis
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